AZ (Eligibility for amnesty) Uganda [2004] UKIAT 00166 (22 June 2004) [2004] UKIAT 00166

UKIAT
AZ (Eligibility for amnesty) Uganda [2004] UKIAT 00166 (22 June 2004)
[2004] UKIAT 00166 · 2004-06-22
[1]APPEAL No. AZ (Eligibility for amnesty) Uganda [2004] UKIAT 00166 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 28 May 2004 Date Determination notified: 22 June 2004 Before Mr G Warr (Vice President) Ms V Street Between Secretary of State for the Home Department APPELLANT and AZ RESPONDENT DETERMINATION AND REASONS The Secretary of State appeals the determination of an Adjudicator (Mr J F W Philips), who allowed the appeal of a citizen of Uganda (hereinafter for convenience referred to as the appellant) from the decision of the Secretary of State to refuse his application for asylum. The determination is reported because it concerns the question of the appellant's eligibility for consideration under the amnesty.[2]Mr A Sheikh appeared for the Secretary of State. Mr G Ilori of Ilori & Co appeared for the appellant.[3]The appellant was a youth mobiliser for the ADF. He would talk to people on a one-to-one basis. He went to playgrounds and explained the position of the ADF. The appellant had not taken part in any violence and had not witnessed any violence. He had joined the ADF in 1997, although he had no rank or position within the organisation. He had not taken part in the armed conflict. He had recruited people because he had understood that the ADF was a reformed organisation.[4]In November 1999 the appellant was arrested and detained until his escape in March 2001. He was extensively tortured during detention.[5]The appellant was asked about the amnesty during the course of the Adjudicator proceedings and he said that he did not believe that the Amnesty would apply to him as he was still in detention during the amnesty.[6]The Adjudicator found the appellant to have given a credible account. The Adjudicator accepted that the appellant had an objective fear. The Adjudicator considered the amnesty. The Adjudicator noted that the amnesty had been in place while the appellant was still in Uganda and it had not been instrumental in affecting his release. The Adjudicator had the benefit of a report compiled by Dr L Pirouet dated 23 August 2002. Instances had been given where people had been rearrested having been given the benefit of the amnesty. It was a pre-requisite that the authorities were satisfied that the appellant had genuinely withdrawn his support for the ADF.[7]The Adjudicator also found that there were compelling reasons arising out of the appellant's previous persecution for him not to be forced to return – this aspect of his reasoning is not supported by Mr Ilori.[8]The Adjudicator did not consider that the exclusion clauses apply. The ADF was a factional group and the faction to which the appellant belonged was a reformed and non-violent part of the ADF. There was no evidence that the appellant had been in any way involved with the armed conflict or the atrocities committed by the ADF.[9]The appellant had a well-founded fear of persecution on Uganda and would also breach his Article 3 rights to return him for the same reasons.[10]Among the documents lodged on behalf of the appellant was a Human Rights Watch Report published in March 2004 entitled "State of Pain: Torture in Uganda". This referred to the Amnesty. It stated that a number of combatants from the various rebel groups had returned to Uganda under the provisions of the Amnesty. Amnesty petitions were also available in the civilian prisons and prisoners – including those charged with treason or terrorism - might fill them out and send them to the authorities without a lawyer. Mr Sheikh submitted that the report, which referred to delays in the consideration of applications for amnesty, referred to those in prison rather than those such as the appellant returning from overseas. Mr Sheikh submitted that it was not indicated at any stage – either in the April 2004 country assessment, the US State Department Report published in 2004, or any other of the material that those who returned under the amnesty were detained on arrival. Moreover, the appellant could apply for consideration under the Amnesty prior to his return as appeared from the report of Dr Pirouet and paragraph 6.16 of the April 2004 Country Assessment. The appellant's re-arrest was not reasonably likely. Former rebels were being given packages to assist their return as was clear from the US State Department Report. The only complaint was the lack of presumably monetary assistance – there was no complaint of being locked up on arrival. The appellant was simply a youth mobiliser. Reference was made to Mbabzi [2002] UKIAT 01829 at paragraph 4 – the Amnesty was effective; and Kagaba [2002] UKAIT 02042 at paragraph 5 – there was no requirement to renounce ones political beliefs.[11]Mr Ilori submitted the case of Lawanga [2002] UKIAT 07115. The appellant had escaped from detention. He had a long political pedigree having been involved with the Democratic Party prior to his activities with the ADF. Reference was made to paragraph 6.125 of the Home Office Country Assessment. Failed asylum seekers could be detained on their return to Kampala. Dr Pirouet had been cautious about applying for the amnesty in the United Kingdom. There was a general climate of impunity and a deterioration of human rights in Uganda according to the Human Rights Watch Report.[12]Although the Adjudicator's conclusions about compelling reasons arising out of previous persecution were not relied on, it was submitted that the appellant's Article 8 rights would be infringed by returning him. He had post-traumatic stress disorder. He might not get adequate treatment in Uganda.[13]According to the Uganda Amnesty International Report, under the heading "Armed Political Groups" the Expression of Terrorism Act classified several rebel movements as "terrorist" and stipulated severe punishments for "terrorists", their supporters and sponsors, including the death penalty. Throughout 2002 former rebels who had been pardoned under the Amnesty Act were rearrested under the suppression of terrorism Act. Not all who applied for consideration under the Amnesty were successful – see Lwanga .[14]Mr Sheikh in reply submitted that the appellant could apply for consideration in London. Furthermore, he had been detained without charge as a youth mobiliser and had never been involved in violent activities. There was no evidence he was wanted in Uganda, nor that he had been charged with any criminal offence. He had not been charged with any terrorist matter. Paragraph 6.125 of the Country Assessment made it clear that only failed asylum seekers who had previously committed a crime in Uganda and who were on a wanted list would be arrested on arrival in Uganda. Someone would not be imprisoned simply for being returned to Uganda as a failed asylum seeker.'[15]Dr Pirouet had referred to the recent rearrest of Tabliq who had been accused of being rebels who had been acquitted by the Courts. There was no evidence that they had been amnestied. There was reference to a court marshal which suggested that they had been undertaking some kind of military service. The appellant's post traumatic stress disorder did not militate against return. Reference was made to M (Croatia) [2004] UKIAT 00034 and Djali [2003] EWCA civ1371. It would not be a disproportionate interference with the appellant's private life for him to be returned to Uganda. The appeal should be allowed.[16]At the conclusion of the submissions we reserved our determination. We have carefully considered the material before us and the authorities to which we have been referred together with the submissions on both sides.[17]The appellant was not a fighter. On the Adjudicator' findings, he was a youth mobiliser engaged in activities on behalf of a non-violent faction of the ADF. He attended playgrounds and so-forth. He was, and we accept, badly tortured in detention and he escaped from detention.[18]It appears on the evidence before us that the appellant would be eligible under the amnesty. Dr Pirouet appeared to be of that view. In January 2003 (see paragraph 6.16 of the Home Office Country Assessment) the International Organisation of Migration Office in Kenya launched a programme to screen former LRA rebels who wished to apply for amnesty and returned to Uganda. Some 358 Ugandans had registered to take advantage of the amnesty. Dr Pirouet considered that it would be possible for the appellant to negotiate through the Uganda High Commission in London in order to avail himself of the amnesty law.[19]Mr Ilori refers to delays in the application of the amnesty process in Uganda. We have carefully considered this submission. We have already referred to the section in the Human Rights Watch document entitled "Amnesty". We note that the application for the amnesty depends on individual application for a certificate accompanied by a statement that the applicant "renounces and abandons involvement in the war or armed rebellion". We should observe that this would be no difficulty for the appellant who disavows any actions involved in violence and on the Adjudicator's findings was not involved in violence. He belonged to a non-violent faction. The report refers to a number of combatants from the various rebel groups who had returned to Uganda under the provisions of the Amnesty. The report then considers petitions being available in the civilian prisons. We accept the submission by Mr Sheikh that the complaint about delays arises from applications made by prisoners submitting petitions in Uganda. Apparently, various bodies had visited the prisons and as a result the amnesty process had been speeded up and many prisoners had been released. However, subsequent amnesty petitions caused a further backlog.[20]We accept Mr Sheikh's submissions that the appellant would not be subject to the lengthy delays arguably faced by those in prison in Uganda prior to being released under the Amnesty. Mr Ilori submits that the appellant would be detained on arrival. He refers to Paragraph 6.125 of the Home Office Country Assessment. This reads as follows:
"The Ugandan Department of Immigration confirmed that only failed asylum seekers who had previously committed a crime in Uganda, and are on their wanted list, would be arrested on arrival in the country. Someone would not be imprisoned simply for being returned to Uganda as a failed asylum seeker. "
[21]Mr Sheikh submitted there was no evidence that the appellant was wanted. He had not been involved in any armed conflict. He could apply for amnesty prior to his return to Uganda. There was no evidence in the background material that returning rebels were incarcerated so why should the appellant be.[22]Mr Ilori submits that, even if the appellant successfully applied under the amnesty, he might face rearrest. He refers to Dr Pirouet's reference in her report to the recent rearrest of Tabliq and to the reference in the Amnesty International Report to the rearrest of former rebels – we have already made reference to this section which is headed "armed political groups".[23]The appellant was a youth mobiliser who was not involved in any armed violence himself. His faction of the ADF was not involved in violence. We see no reason for the appellant to be viewed as a suspected terrorist.[24]The United States Human Rights Report refers to Government assistance being provided under the 2000 Amnesty Act "to former rebels to assist their return to the country." Several former rebels had been integrated into the UPDF and the Uganda National Rescue Front II which had been successfully demobilised as a rebel force. Several former rebels had received reintegration packages to help them re-enter civilian life. Apparently others in the group had complained that the Government had not delivered assistance that had been promised.[25]Mr Sheikh makes the point that the evidence was not to the effect that those who had the benefit of the Amnesty were detained on arrival – they complained about the absence of assistance that had been promised.[26]Reference has been made to Tribunal authorities on each side. In Lwanga the Tribunal made it clear that cases were fact specific. There was some indication in the case of Lwanga that the appellant had been thought of as a spy. In this case the appellant was a youth mobiliser who did not believe in violence and who was, on the Adjudicator' findings, part of a reformed and non-violent part of the ADF.[27]We accept that the human rights situation in Uganda is far from ideal and that there is a climate of suspicion – see the Human Rights Watch Report. However, we are not satisfied that the Adjudicator was entitled to find that the appellant would not benefit from the amnesty. Furthermore, on the evidence before us we do not find that the appellant would be rearrested as a suspected rebel.[28]So far as the Appellant's medical condition is concerned, the report relied on was written some time ago – on 4 September 2002. The doctor concludes that re-exposure to the same environment or situation would exacerbate the appellant's symptoms and thereby worsen his condition – i.e. of post-traumatic stress disorder. On our findings the appellant should not be exposed to the same situation. Moreover, he can apply to be considered under the amnesty in London which should assuage his concerns. Mr Sheikh relied on M (Croatia) in support of his submission that it would not be disproportionate to require the appellant's return to Uganda notwithstanding any interference with his private life. He also referred to Djali [2003] EWCA Civ1371. There does not appear to us to be substantial grounds for believing that the appellant would face a real risk of serious harm to his mental health (see Djali at paragraphs 16ff) and, were it necessary to consider proportionality issues it would not appear to us to be properly arguable that removal of the Appellant would not be proportionate – see, ibid , at paragraphs 21ff and, further, see M (Croatia) at paragraph 28.[29]For the reasons we have given, the appeal of the Secretary of State is allowed and a decision of the Adjudicator is reversed. G. WARR VICE PRESIDENT

Cited in 1 later judgment